Pestka v. State

Argued
and submitted January 13, 2016; following supplemental
briefing, argued and submitted again April 26, 2016

Appeal
from the Cole County circuit court, Judge Jon E. Beetem

The
challengers were represented by Michael A. Evans and James P.
Faul of Hartnett Gladney Hetterman LLC and the state was
represented by Maggie M. Ahrens of the attorney
general’s office in Jefferson City

This
summary is not part of the opinion of the Court. It has been
prepared by the communications counsel for the convenience of
the reader. It neither has been reviewed nor approved by the
Supreme Court and should not be quoted or cited.

Overview:
This case presents an issue of first impression - whether the
state senate had constitutional authority to override the
governor's veto of a bill during its veto session when
the house of representatives voted to override the veto
during the regular legislative session. In a 4-3 decision
written by Judge George W. Draper III, the Supreme Court of
Missouri reverses the circuit court's judgment in favor
of the state. When the governor vetoes a bill more than five
days before the end of the regular legislative session, the
plain language and history of the pertinent constitutional
provision require the legislature to reconsider and vote to
override the veto before the session adjourns for the bill to
pass. The senate's override of this particular veto
during the subsequent veto session, therefore, was untimely.
Because the bill was not passed as the constitution requires,
none of its provisions became law.

Judge
Mary R. Russell dissents. She would hold the senate's
proceedings overriding the governor's veto of the bill
complied with the requirements of the plain language, history
and contextual meaning of the pertinent constitutional
provision. Absent express requirements of the constitution,
the senate has constitutional authority to determine the
rules of its own proceedings.

Facts:
The legislature passed House Bill No. 150, which made changes
to Missouri's unemployment benefits compensation
statutes, in April 2015. The governor vetoed the bill on May
5, 2015, more than five days before the legislature
adjourned. Before adjournment, the house of representatives
reconsidered HB 150 and voted to override the governor's
veto. The senate adjourned May 15, 2015, without taking any
action to reconsider the bill or override the veto. The
governor's veto of an unrelated bill resulted in the
legislature convening in September 2015 for a veto session
pursuant to article III, section 32 of the state
constitution. During the veto session, the senate
reconsidered HB 150 and voted to override the governor's
veto. Challengers sued, seeking to prohibit HB 150 from being
executed or enforced. The circuit court granted judgment on
the pleadings to the state. The court found that article III,
section 32 did not limit what bills could be considered
during the veto session nor require a vetoed bill to be
reconsidered before the end of the regular legislation
session and that the senate's veto-session vote on HB 150
was timely and did not violate article III, section 32. The
challengers appeal.

REVERSED.

Court
en banc holds: The senate's override of the
governor's veto of HB 150 was untimely, causing the bill
not to be passed, "the objections of the governor
thereto notwithstanding" as the constitution requires.
The plain language of article III, section 32 demonstrates
that a veto session is not triggered until and unless the
governor vetoes a bill on or after the fifth day before the
end of the regular legislative session, and reconsideration
of such vetoed bills contemplates a two-house process in
which the house to which the bill is returned must vote to
override the veto and then send the bill to the other house
for "like proceedings." The parties dispute what
the legislature may reconsider during the veto session. A
close reading of the three amendments to article III, section
32 since the state's constitution was adopted in 1945
reveals the people's intent to confine a September veto
session to only late-vetoed bills. In 1945, the legislature
could reconsider any bill vetoed by the governor, regardless
of when the veto occurred, at its convenience. In every
subsequent amendment to article III, section 32, the people
of Missouri gradually have restricted the legislature's
power regarding which bills it can reconsider and when it can
reconsider them, making a clear distinction between
"every bill" the governor returned and late-vetoed
bills. This Court must presume these amendments have meaning
and were intended to define the scope of the September veto
session. When construing the first two sentences of article
III, section 32 together, this Court finds the veto
session's purpose is to consider the late-vetoed bills -
plural - that brought the session into existence, not
additional bills. The legislature has adequate time to
reconsider a bill vetoed more than five days before the end
of the legislative session or reintroduce the same or similar
bill for consideration and adoption. There is no dispute that
HB 150 was not a late-vetoed bill. The house sent it to the
senate for reconsideration two days before the regular
session ended. The senate failed to act on the bill before
the end of the regular session, and it lacked authority to
reconsider the bill during the September veto session.
Neither the parties nor the dissenting opinion point to any
single prior instance when the legislature endeavored to
override the governor's veto in such a way as occurred
here.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Dissenting
Opinion by Judge Russell: The author would hold the
senate's proceedings overriding the governor's veto
of HB 150 complied with the requirements of the plain text of
article III, section 32; therefore, she would affirm the
circuit court's judgment. Absent express requirements of
the constitution, the senate has constitutional authority to
determine the rules of its own proceedings. The plain
language of article III, section 32 permits the legislature
to reconsider any vetoed bills during its veto session. Under
that provision, once a single late-vetoed bill automatically
triggers the veto session, the legislature reconvenes for not
more than 10 days for the sole purpose of considering
"bills returned by the governor." The provision
does not contain language explicitly limiting the legislature
to consider only the late-vetoed bill that triggered the
session or any other late-vetoed bills. A natural reading of
the "bills returned by the governor" includes all
vetoed bills, not just those that were vetoed late in the
session. Further, the amendments to article III, section 32
demonstrate the voters knew how to limit which vetoed bills
the legislature could consider and when, but voters instead
retained more expansive language that allows the legislature
to reconsider "bills" vetoed by the governor when
"any bill" is returned late and triggers the veto
session. The language of surrounding constitutional
provisions emphasizes that article III, section 32 does not
limit the legislature's power to reconsider vetoed bills
but rather protects and enlarges that power. The
legislature's override of the governor's veto was
valid even though the house voted to override the ...

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